Fact Sheet - Finding of Failure to Submit an Element of a State Implementation Plan
Required for the 1-hour Ozone NAAQS

ACTION

On January 5, 2010 the U.S. Environmental Protection Agency (EPA) issued a finding that the state of California missed the Clean Air Act deadline for submitting a required element of their State Implementation Plan (SIP). The required SIP program must provide for the collection of fees in the event certain areas fail to attain the 1-hour ozone National Ambient Air Quality Standards by the dates established by the Clean Air Act.

Section 185 of the Clean Air Act imposes a fee on major sources of ozone precursor emissions located in a severe or extreme ozone nonattainment area that fails to attain the 1-hour ozone standard by the area’s attainment date.

In this notice, EPA is making a finding of failure to submit the section 185 fee program SIP elements for the State of California that are required for the following 1-hour ozone nonattainment areas: Southeast Modified AQMA (includes Coachella Valley), Los Angeles-South Coast Air Basin, and a portion of the Sacramento Metro Area.

For findings of failure to submit, the Clean Air Act requires EPA to start three timetables, known as “clocks,” on the date the finding is published in the Federal Register. This action will be effective on the date of the publication in the Federal Register.

The three clocks include two sanctions clocks, and a deadline for EPA to issue federal implementation plans (FIPs). These clocks range from 18 months to two years.

EPA is working with California to ensure they submit revised and approvable plans as soon as possible.

For the findings for failure to submit, the sanction clocks will be turned off when the State submits a complete ozone attainment demonstration SIP; the FIP clock will be turned off when EPA approves a final SIP.

The Clocks

Emission offset sanctions (18 months): Under emission offset sanctions, a state must ensure that each ton of emissions created by a new stationary source of pollution is offset by a two ton reduction in existing stationary sources. These offset requirements would apply in areas designated as “nonattainment” for the ozone standard.

Highway fund sanctions (two years): Underhighway fund sanctions, a state can lose funding for transportation projects if the funds have not been obligated by the Federal Highway Administration by the date the highway sanctions are imposed. (Projects that have already received approval to proceed and had funds obligated may proceed.)

Federal Implementation Plans (two years): Under a FIP, EPA, not the state, determines what steps must be taken to meet the standard.

The National Ambient Air Quality Standards (NAAQS) for 1-hour ozone were established in 1979. Subsequently, EPA has made two revisions to the NAAQS once in 1997 and again in 2008. These revisions did not change the obligation of certain areas to meet the requirements established under the 1-hour NAAQS. This action ensures continued progress toward achieving the 1 hour NAAQS and will also help the affected States meet the revised ozone NAAQS.

Section 185 applies as an obligation for severe and extreme ozone nonattainment areas that fail to attain by their attainment date.

Major stationary sources of VOC and NOx in such an area are subject to fees ($5,000 per ton adjusted for inflation) for emissions that are above 80 percent of the attainment year emissions baseline.

The Clean Air Act requires fees to be collected until the area attains the ozone NAAQS.

EPA waived the section 185 fee requirement for the revoked 1-hour ozone NAAQS in the Phase 1 ozone implementation rule which was issued in April 2004 to address the transition from the 1-hour to the 1997 8-hour ozone NAAQS.

The D.C. Circuit Court opinion (South Coast v. EPA, December 23, 2006) identified section 185 fees as a requirement that must be implemented by former 1-hour ozone severe and extreme areas to prevent backsliding, as required by section 172(e) of the Clean Air Act.

As a result, areas that were classified as severe or extreme for the revoked 1-hour ozone standards are required to implement section 185 of the Clean Air Act.

EPA is required to collect the fees if a state’s SIP does not meet the requirements of section 185, or if a state is not administering and enforcing a section 185 SIP.

FOR MORE INFORMATION

For further information concerning this action, contact Ms. Denise Gerth of EPA’s Office of Air Quality Planning and Standards at (919) 541-5550 or gerth.denise@epa.gov